The opinion of the court was delivered by: JAMES McCLURE, Senior District Judge

MEMORANDUM

BACKGROUND:

On February 18, 2004, plaintiff Kevin Bowman, a prisoner
confined at SCI-Frackville, Frackville, Pennsylvania, filed suit
under 42 U.S.C. § 1983 and the Religious Land Use and
Institutionalized Persons Act, ("RLUIPA"),
42 U.S.C. § 2000cc-2(a), in the United States District Court for the Eastern
District of Pennsylvania. On May 12, 2004, defendants filed a
motion to dismiss or in the alternative to transfer venue. After
the matter was fully briefed and a hearing was held, on September 23, 2004, the district court transferred the
matter to the Middle District of Pennsylvania. At that time the
court denied defendant's motion to dismiss based on venue, but
stayed for our determination the substantive grounds of
defendants' motion to dismiss. The matter has proceeded in an
orderly pre-trial course before United States Magistrate Judge
Malachy E. Mannion. No new dispositive motions have been filed
since the initial original motion to dismiss; the court now
addresses defendants' motion to dismiss plaintiff's claims on the
grounds not addressed by the Eastern District Court.

For the following reasons the court will partially grant
defendants' motion.

DISCUSSION:

I. Motion to Dismiss Standard

When considering a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), the court must view all allegations
stated in the complaint as true and construe all inferences in
the light most favorable to plaintiff. Hishon v. King &
Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz,
1 F.3d 176, 183 (3d Cir. 1993). In ruling on a motion to dismiss the
court primarily considers the allegations of the pleading, but is
not required to consider legal conclusions alleged in the
complaint. Kost, 1 F.3d at 183. At the motion to dismiss stage,
the court considers whether plaintiff is entitled to offer
evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir.
2000). A complaint should be dismissed only if the court, from
evaluating the allegations in the complaint, is certain that
under any set of facts relief cannot be granted. Conley v.
Gibson, 355 U.S. 41, 45-46 (1957); Morse v. Lower Merion School
Dist., 132 F.3d 902, 906 (3d Cir. 1997); Markowitz v. Northeast
Land, Co., 906 F.2d 100, 103 (3d Cir. 1994).

The failure-to-state-a-claim standard of Rule 12(b)(6)
"streamlines litigation by dispensing with needless discovery and
factfinding." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).
A court may dismiss a claim under Rule 12(b)(6) where there is a
"dispositive issue of law." Id. at 326. If it is beyond a doubt
that the non-moving party can prove no set of facts in support of
its allegations, then a claim must be dismissed "without regard
to whether it is based on an outlandish legal theory or on a
close but ultimately unavailing one." Id. at 327.

II. Plaintiff's Complaint

Plaintiff is a prisoner currently detained at SCI-Frackville.
The factual allegations that form the basis of his complaint
against the Department of Corrections, however, occurred while he
was detained at SCI-Mahoney and then at SCI-Somerset. Plaintiff
contends that he was discriminated against by the staff of
SCI-Mahoney and SCI-Somerset on the basis of his Muslim religion. The complaint makes several allegations involving conduct by
defendants directed at both Bowman and other Muslim inmates.
Plaintiff has asserted that defendants refused to allow plaintiff
and other inmates of the Muslim faith to conduct services and
classes which reflect their fundamental religious beliefs. Bowman
asserts that he was mistakenly labeled an Islamic extremist, was
accused of participating in an "unauthorized group activity", and
was punished for other inmates' written requests to have classes
in Aqeeda and Salat (faith and prayer), which were not being
taught by the approved faith group leader for all Muslims at
SCI-Mahoney. Defendants demanded that Bowman and other Muslims
shave their beards to less than three inches, in violation of
their Islamic beliefs. Defendants also allegedly demanded that
Bowman and other Muslims roll down their pant legs, in violation
of their Islamic beliefs.

Bowman was allegedly punished by being placed in the restricted
housing unit, being issued several misconducts for not shaving
his beard less than three inches and for refusing to roll down
his pant legs, both in violation of his Islamic beliefs, and then
being transferred twice to different prisons. Then, at
SCI-Somerset, the prison to which he was first transferred,
Bowman remained in restricted housing.

First, we note that this is not a class action. Bowman is the
only named plaintiff, and the court will only entertain an active case or
controversy as to grievances of the named plaintiff.

The complaint asserts that defendants' conduct toward plaintiff
and his fellow Muslims violated his constitutional rights,
providing a cause of action under 42 U.S.C. § 1983 and RLUIPA,
42 U.S.C. § 2000cc-2(a). The complaint does not specifically
identify what constitutional rights were allegedly violated by
defendants, but we infer from the complaint that plaintiff is
bringing a retaliation claim based on his First Amendment right
to the free exercise of Islam and a Fourteenth Amendment due
process claim based on his placement in restrictive housing.

1. Declaratory judgment for plaintiff declaring that
the defendants' acts, policies and practices
described herein and as expounded upon during the
course of discovery in this action violate
plaintiff's rights under the United States
Constitution.

2. A preliminary and permanent injunction which:

a) Prohibits the defendants, their successors in
office, agents and employees and all other persons in
active concert and participation of them from
harassing, threatening, punishing, or retaliating in
any way against any plaintiff because he filed this
action, or against any inmate because that inmate
submitted an affidavit or otherwise testified in this
case on behalf of plaintiff; b) Prohibits the defendants from transferring
plaintiff to any other institution, without express
consent, during the pendency of this action;

c) Requires the defendants to remove from the
plaintiff's prison files and records any references
to any events described herein or to the fact that
plaintiff filed this suit;

d) Requires the defendants to allow plaintiff and
other Muslim inmates to:

1) engage in any oral or written communication which
is reasonably related to the conduct of this suit,
including the preparation of affidavits on behalf of
plaintiff;

2) to allow plaintiff to confer with his counsel and
to prepare legal papers and do anything else,
consistent in prison security, which is reasonably
connected with the conduct of this suit.

3. Compensatory damages from the defendants, jointly
and severally, to the plaintiff for the conduct
complained of herein;

4. Punitive damages from the defendants, jointly and
severally, to plaintiff;

5. A jury trial on all issues triable by jury.

6. Plaintiff's costs of this suit and his attorney's
fees.

7. Such other and further relief as this Court deems
just, proper and equitable.

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
. . . subjects, or causes to be subjected, any
citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress . . .

42 U.S.C. § 1983.

In order for a plaintiff to prevail under 42 U.S.C. § 1983 he
must establish two elements: 1) that the conduct complained of
was committed by a person acting under color of state law; and 2)
that the conduct deprived a person of rights, privileges, or
immunities secured by the Constitution or laws of the
United States. Kost, 1 F.3d at 184 (3d Cir. 1993).

No government shall impose a substantial burden on
religious exercise of a person residing in or
confined to an institution, as defined in section
1997 of this title, even if the burden results from a
rule of general applicability, unless the government demonstrates that imposition of
the burden on that person 

(1) is in furtherance of a compelling governmental
interest; and

(2) is the least restrictive means of furthering that
compelling governmental interest.

42 U.S.C. § 2000cc-1(a).

The statute is applicable to "any case in which . . . the
substantial burden imposed is imposed in a program or activity
that receives Federal financial assistance."
42 U.S.C. § 2000cc-1(b)(1). As part of enacting RLUIPA, Congress created a
private cause of action. RLUIPA provides that "[a] person may
assert a violation of this chapter as a claim or defense in a
judicial proceeding and obtain appropriate relief against a
government." 42 U.S.C. § 2000cc-2(a).

IV. Defendants' Motion to Dismiss

Defendants' motion to dismiss asserts that (1) defendant the
Commonwealth of Pennsylvania, Department of Corrections, and its
defendant officials and employees to the extent they are sued for
damages in their official capacities are immune from suit under
the Eleventh Amendment of the United States Constitution; (2)
plaintiff's due process claims should be dismissed as he has no
liberty interest in remaining in the prison's general population;
and (3) the action should be dismissed for lack of any allegation
of personal involvement by the named defendants in a constitutional claim.

A. Plaintiff's Claim Under 42 U.S.C. § 1983 Against the
Department of Corrections & the Defendant Employees in Their
Official Capacities are Dismissed to the Extent Plaintiff Seeks
Money Damages

Plaintiff's complaint seeks recovery from each defendant both
in their individual and official capacities. (Compl., Rec. Doc.
No. 1, at 3, ¶ 10.) One of the named defendants is the
Commonwealth of Pennsylvania, Department of Corrections, a state
agency. Neither a State nor its officials acting in their
official capacity are "persons" under 42 U.S.C. § 1983. Will v.
Michigan, 491 U.S. 58, 64 (1989); Boone v. Pennsylvania Office
of Vocational Rehabilitation, 373 F.Supp. 2d 484, 498 (M.D. Pa.
2005) (Rambo, J.). The United States Supreme Court in Will was
explicit that its holding was applicable to States and
governmental entities that are "arms of the State" for purposes
of the Eleventh Amendment. 491 U.S. at 70.

In addition to the Department of Corrections not being a person
for purposes of § 1983, the corrections agency is an arm of the
State for purposes of the Eleventh Amendment, and therefore,
because the state has not waived its immunity, it is protected
from suit in federal court. See Wheeler v. Beard, 2005 WL
1840159, at *16 (E.D. Pa. Aug. 3, 2005) (Yohn, J) (finding
Pennsylvania's Department of Corrections is an arm of the state);
42 Pa. Stat. Ann. § 8521(b) (Pennsylvania' statutory withholding
of consent to be sued). Plaintiff's claim under 42 U.S.C. § 1983 against the Commonwealth's Department of
Corrections must be dismissed. Also, plaintiff's claims against
the individual state employees in their official capacities must
be dismissed to the extent that money damages are sought.
However, "official-capacity actions for prospective relief are
not treated as actions against the State," Kentucky v. Graham,
473 U.S. 159, 167 n. 14 (1985) (citing Ex parte Young,
209 U.S. 123 (1908)); therefore, plaintiff may pursue equitable relief
against official-capacity defendants. See Blanciak v.
Allegheny Ludlum Corp., 77 F.3d 690, 697-98 (3d Cir. 1996).

B. Plaintiff's Complaint to the Extent it Asserts a Due Process
Claim Based on His Being Placed in Restricted Housing is
Dismissed

As we noted above, plaintiff does not identify particular
constitutional violations in his pleadings. To the extent
plaintiff has asserted a Due Process claim it must fail.
Plaintiff alleges that as a form of retaliation for his interest
in exercising his Islamic faith he was housed in a restrictive
housing unit within the prison, and then transferred to another
prison where he was also housed in a restricted unit for a total
of nine months.

Plaintiff's argument that attempts to distinguish the conduct
that warrants segregation from the regular prison population
misses the mark. (Rec. Doc. No. 1, at 68.) As plaintiff has
noted, the Fourteenth Amendment Due Process protection for a state-created liberty interest on the part of a prison
inmate is "limited to those situations where deprivation of that
interest `imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.'" Griffin
v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) (discussing Sandin
v. Conner, 515 U.S. 472 (1995)). The baseline for determining
what is `atypical and significant' is determined by "what a
sentenced inmate may reasonably expect to encounter as a result
of his or her conviction in accordance with due process of law."
Id. Plaintiff simply has no protected liberty interest in
remaining in the general prison population for a period of nine
months. See id. at 708 (prison did not interfere with a
protected liberty interest when inmate remained in restricted
housing for 15 months); see also Milton v. Ray, 2005 WL
2106180, *4 (M.D. Pa. Aug. 31, 2005) (Kane, J.). Therefore, to
the extent plaintiff's claim under 42 U.S.C. § 1983 asserts that
defendants violated his rights to due process protected by the
Fourteenth Amendment, the claims are dismissed.

C. Lack of Personal Involvement as to the Section 1983 Claims

Finally, defendants contend in their motion to dismiss that
plaintiff has insufficiently alleged personal involvement by the
defendants to state a cognizable section 1983 claim.*fn1 Plaintiff has alleged the personal
involvement of defendants Kane and Mooney. Plaintiff has not
alleged personal involvement by any of the other defendants.
Despite defendants' position that the law remains unsettled on
pleading requirements in cases involving the qualified immunity
of individual government officials, the Third Circuit only
requires notice pleading for civil rights complaints, and not
some heightened standard. Alston v. Parker, 363 F.3d 229, 233
(3d Cir. 2004) ("Fundamentally, a heightened pleading requirement
for civil rights complaints no longer retains vitality under the
Federal Rules."); see also Evancho v. Fisher, ___ F.3d ___, 2005
WL 2179883, *5 (3d Cir. Sept. 12, 2005) (reiterating that civil
rights plaintiffs need only follow liberal notice pleading
standard). We will allow plaintiff an opportunity to amend his
complaint to include specificity as to the other defendants'
conduct.

V. Plaintiff's Requests for Declaratory & Injunctive Relief

Plaintiff's complaint includes a series of requests for
declaratory and injunctive relief:

1. Declaratory judgment for plaintiff declaring that
the defendants' acts, policies and practices
described herein and as expounded upon during the
course of discovery in this action violate plaintiff's rights under the
United States Constitution.

2. A preliminary and permanent injunction which:

a) Prohibits the defendants, their successors in
office, agents and employees and all other persons in
active concert and participation of them from
harassing, threatening, punishing, or retaliating in
any way against any plaintiff because he filed this
action, or against any inmate because that inmate
submitted an affidavit or otherwise testified in this
case on behalf of plaintiff;

b) Prohibits the defendants from transferring
plaintiff to any other institution, without express
consent, during the pendency of this action;

c) Requires the defendants to remove from the
plaintiff's prison files and records any references
to any events described herein or to the fact that
plaintiff filed this suit;

d) Requires the defendants to allow plaintiff and
other Muslim inmates to:

1) engage in any oral or written communication which
is reasonably related to the conduct of this suit,
including the preparation of affidavits on behalf of
plaintiff;

2) to allow plaintiff to confer with his counsel and
to prepare legal papers and do anything else,
consistent in prison security, which is reasonably
connected with the conduct of this suit.

. . .

7. Such other and further relief as this Court deems
just, proper and equitable. Defendants' conduct which forms the basis of this complaint
involved activities that occurred while plaintiff was detained at
SCI-Mahoney and SCI-Somerset. Plaintiff is currently detained at
SCI-Frackville and is not in restrictive housing. One of the
narrow exceptions to Eleventh Amendment immunity is for suits
seeking prospective relief against officials to remedy an ongoing
violation of federal law. M.A. v. State-Operated Sch. Dist.,
344 F.3d 335, 345 (3d Cir. 2003) (citations omitted). Plaintiff's
injunctive requests are not of that nature  they do not address
an ongoing violation, e.g., they are not requests that Bowman
be allowed to meet and study his preferred Muslim classes;
instead, plaintiff's request seeks to prevent retaliation for
filing this suit. These are inappropriate requests for injunctive
relief because the plaintiff's injury is merely speculative and
does not establish a real and immediate threat. See City of
Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). Furthermore,
laws already exist that prohibit the defendants from retaliating
against plaintiff, and if defendants were to retaliate against
plaintiff, plaintiff could file an administrative complaint and a
separate civil rights action. Therefore, plaintiff's requests for
injunctive relief are dismissed, as they do not address ongoing
violations of federal law.

VI. Plaintiff's RLUIPA Claim Remains

As noted above, plaintiff's complaint asserts that defendants
violated RLUIPA, 42 U.S.C. § 2000cc-2(a). Defendants do not address the
RLUIPA claim in their motion to dismiss or supporting brief, and
only address the plaintiff's allegations of violations of his
civil rights under 42 U.S.C. § 1983. Therefore, the RLUIPA claim
remains. However, plaintiff is not entitled to the injunctive
relief he has requested under RLUIPA because, as stated above,
the requests do not seek relief from ongoing violations of
federal law. ORDER

For the reasons set forth in the accompanying memorandum, NOW,
THEREFORE, IT IS HEREBY ORDERED THAT:

1. Defendants' motion to dismiss is granted in part and denied
in part. (Rec. Doc. No. 1, Eastern District Rec. Doc. No. 4.)

2. Plaintiff's claims under 42 U.S.C. § 1983 for monetary
damages against the Commonwealth of Pennsylvania Department of
Corrections and the other defendants in their official capacities
are dismissed on the basis of the defendants' sovereign immunity under the Eleventh Amendment.

3. Plaintiff's requests for injunctive relief from the
defendants under both 42 U.S.C. § 1983 and RLUIPA,
42 U.S.C. § 2000cc-2(a), are dismissed as they do not address an ongoing
violation of plaintiff's federal rights.

5. Plaintiff may amend his complaint within twenty (20) days to
provide more specific allegations as to the actions of defendant
employees and to state with more particularity the nature of the
First Amendment Free Exercise Clause retaliation claim underlying
his 42 U.S.C. § 1983 action, which we have inferred from his
complaint.

6. The October 7, 2005 deadline for filing motions for summary
judgment is cancelled, and will be reset upon completion of the
pleadings.

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